Public Law Flashcards
What is the test for JR application?
“Standing” = Applicant needs to show they have ‘sufficient interest’ in the matter to which the application relates
- become a broad/generous test in favour of claimants/applicants
- allows ‘group challenges’, can come from associations, and test allows broader public interest challenges (front people need to have some recognition etc in the matter)
=> governmental power should be subject to legal controls/oversight which is why courts follow broader application of the test
What type of decisions/matters are subject to JR challenge?
a decision, action or failure to act in relation to the exercise of a public function
- dependant on nature of decision being challenged, rather than on status of body making the decision or where the powers originally came from
- ie. could challenge a deciding made be a body to which powers have been contracted out
What are ‘ouster clauses’?
Section within an acts of parliament that purport to exclude the jurisdiction of the court in certain situations/when the government is exercising a power derived from the act with clause
Courts see this as negating the courts power to ensure gov acts lawfully
What are limitation clauses?
They still preserve the right to bring a JR action, but restrict them to a certain period of time within which a JR challenge can be brought
Time Limit rules re JR action
- JR proceedings must be issued ‘promptly and in any event within 3 months’ (of the relevant decision)
- need to have a good reason for not acting promptly (if you could have)
=> there are sub-rules for certain types of decisions (eg planning (6 weeks)and public procurement(30 days))
=> balancing of public and individual interests
What are the key grounds of JR?
- Illegality
- Unreasonableness
- Procedural impropriety
- Legitimate expectation
What is illegality (JR)?
Main ground to bring JR action
Pure or simple ultra vires
- if public body (PB) has been acting outside the powers it has been given (e.g by Parliament)
Errors of law
- happens when a PB had the power, but did not understand/misadministered its powers
Errors of (established) fact
- where a PB uses a power on the basis of a mistaken factual consideration or factor
- this has to be a material fact + error must cause unfairness
=> factors can overlap
What is illegality (JR) re failings in use of discretion?
When a body is granted to discretion to make decisions, must:
- have regard to relevant factors and disregard irrelevant ones
- PB must use its powers for the objective purpose which parliament had in might when it awarded the PB its discretion (Improper Purpose)
- (Fettering of discretion) When PB is awarded discretionary powers, but PB does not consider to exercise it, or restricts its own discretion = could be deemed unlawful
- (unlawful delegation) powers should be exercised by relevant holder of power BUT in relation to e.g ministerial powers, they need to delegate some powers to others so job gets done, but they are ultimately responsible = modified by Carltona principle -> applies only to ministers
what is unreasonableness (JR)?
2nd substantive ground of JR action
=> was decision made in a way that was illogical, irrational, or lacked reason?
-> multi layered assessment
(A) Nature of challenge:
- was there a failure in the weighing up of considerations/factors?
- looking at degree of impact on affected party -> did it have an oppressive/disproportionate impact?
- was a decision taken in bad faith?
(B) intensity of review
If a decision concerns/affects:
1. Fundamental/human rights = higher intensity of review (ie. More scrutiny)
2. Broader policy questions = lower intensity of review (PB must’ve done something very wrong) -> akin to wednesbury unreasonableness
What is Procedural Impropriety (JR)?
=> statutory procedural obligations
Did parliament intend that failure to comply with statutory obligation would justify the invalidation of a decision/process?
What is the problem re bias in public decision making (JR)?
Question of whether the outcome of a process can be invalidated because of bias
1. Direct Bias
- direct personal financial interest in a decision
- being a “judge in one’s own cause”
=> actual existence of own bias
2. Indirect Bias
=> about appearance of bias
- Objective Test = would fair minded and informed observer conclude that there was a real possibility of bias?
- relevant: closeness of connection, preconceived mindset etc.
What is Legitimate expectation? (JR)
Newest ground of JR action
1. Legitimate expection (LE)
-> procedural (original) + substantive(smth tangible) LE
- can arise expressly (eg. through promise, in a letter etc.) or pattern of conduct (or some usual procedure)
- promise must be clear & unambiguous
- Party putting out LE must have authority behind it
- detrimental reliance not essential
=> ie. LE was “taken away/frustrated”
2. Was frustration of an LE lawful?
- frustration can be lawful if PB has acted proportionately in the way they have withdrawn the LE
- for larger scale/macro economic matters = wednesbury standard of review (less intrusive) is used (ie political decisions)
What is ‘preserved EU law’?
Under EU-UK Withdrawal Agremeent:
Only applies to two areas of EU law:
1. Rights of EU citizens (settled status)
2. NI protocol (and subsequent iterations)
-> in these areas, all decisions are made in accordance to withdrawal agreement itself
-> only re these areas
1. do courts still have ability to disapply old UK law that contravenes EU law
2. Can references be made to CJEU
What is retained / assimilated EU law?
=> everything else that is not NI protocol and settled status of non-EU citizens (ie preserved EU law)
What is the purpose of the Human Rights Act 1998 and what does it contain?
=> To incorporate the ECHR into UK Domestic law
UK had been a member of the ECHR convention but law had not been incorporated into domestic law until 1998
Key section = s.2 HRA - UK courts must “take into account” ECtHR case law” BUT does not equal absolute obligation (partly bc UK has different legal system than other EU countries)
Key Principles:
1. positive obligation = PB must not only not breach act but also to try and protect of rights of all (from 3rd party violation also)
2. Proportionality = key method of valuation (re qualified rights)
=> s.6(1) imposed duty on all Public Authorities to compatibly with act (enables enforcement of act)
